The continued use of a controversial permit in the Black Warrior River watershed by the U.S. Army Corps of Engineers fails to comply with federal requirements for surface coal mining, according to a lawsuit filed Nov. 25 by the Southern Environmental Law Center and Public Justice on behalf of Black Warrior Riverkeeper and Defenders of Wildlife.
The lawsuit challenges the Corps’ use of the Section 404 Nationwide Permit 21 in Alabama, which has already authorized the fill and burial of hundreds of miles of streams and wetlands to accommodate surface mining, without the detailed study and analysis of cumulative impacts required by the Clean Water Act and the National Environmental Policy Act, the plaintiffs claimed.
In two prior lawsuits brought by Public Justice against the Corps in Kentucky and West Virginia, two federal courts have already declared NWP 21 to be in violation of these laws, they noted.
The Corps under the Obama Administration suspended the use of this permit elsewhere in the Appalachian region in 2010 because of concern over its adverse effects on aquatic resources. Although the Corps substantially revised the permit when reissuing it in 2012, the Corps also included an arbitrary “grandfather” provision that allows the unlimited fill of streams and wetlands authorized by the previous version of the permit to continue in Alabama until 2017, the plaintiffs said.
Originally estimating that the “grandfather” would be used rarely, the Corps has so far approved around 80 total projects across the country under its auspices – including 41 projects in the Black Warrior watershed alone.
“These 41 grandfathered permits should never have been granted, because they rely on the Corps’ unsupportable and undocumented assumption that burying and disturbing tens of miles of streams has only minimal cumulative effects,” said Jim Hecker, Environmental Enforcement Director at Public Justice.
Since May 2012, the use of this permit has authorized the fill of over about 27 miles of streams in the Black Warrior basin, the litigants said. The Black Warrior River watershed is a major source of drinking water for Birmingham, Tuscaloosa, and other Alabama communities.
This lawsuit asks the Corps to revise the permitting process to adequately consider the site-specific and cumulative environmental impacts of new stream-filling by coal mining. Activities that have more than minimal effects, either individually or cumulatively, such as significant stream-filling by coal mining, require individual permits under the Clean Water Act that can only be issued after extensive review and public comment.
The Black Warrior River watershed is the largest coal producing region in Alabama, with more than 90 active coal mines, the plaintiffs said.